685 F.

2d 117

Ralph W. STATON, Appellant,

v.
UNITED STATES of America, Appellee.
No. 80-1744.

United States Court of Appeals,

Fourth Circuit.
Argued Jan. 8, 1982.
Decided June 10, 1982.

Paul Reiber, Rutland, Vt., for appellant.

E. Montgomery Tucker, Asst. U. S. Atty., Roanoke, Va. (John S.
Edwards, U. S. Atty., Roanoke, Va., on brief), for appellee.
Before WINTER, Chief Judge, and ERVIN and CHAPMAN, Circuit
Judges.
ERVIN, Circuit Judge:

Ralph W. Staton brought this action against the United States under the Federal
Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq., to recover damages for
the loss of three hunting dogs shot by a park ranger in the Shenandoah National
Park. The district court held that the government was exempt from liability
under 28 U.S.C. 2680(a) of the Federal Tort Claims Act because the park
ranger had performed a discretionary act under 36 C.F.R. 2.8(d).

We find that shooting the dogs was not a discretionary act and hold, therefore,
that the government is not exempt from liability under the "discretionary
function" clause of 2680(a). The government is exempt from liability under
2680(a), nonetheless, if the park ranger was "exercising due care, in the
execution of a statute or regulation" when he shot the dogs. Because it is
unclear whether the district court considered the issue of negligence, we reverse
and remand with instructions to make findings on that issue.

I.

A.
3

Shenandoah National Park is a wildlife sanctuary located in northern Virginia.

Congress has authorized the Secretary of the Interior to promulgate regulations
necessary "for the protection of the property therein, especially ... for the
protection of the animals and birds in the park from capture or destruction, and
to prevent their being frightened or driven from the said park ...." 16 U.S.C.
403c-3. Pursuant to this congressional grant of authority, the Secretary
promulgated 36 C.F.R. 2.8, which provides in pertinent part:

(a) Dogs, cats and other pets are prohibited unless they are crated, caged, or on
a leash, or otherwise under physical restrictive control at all times.

(d) Dogs, cats or other pets running at large and observed by an authorized
person in the act of killing, injuring or molesting humans or wildlife may be
disposed of in the interest of public safety and protection of wildlife.

Despite authorization to dispose of unleashed dogs endangering wildlife in the

park, it has been the practice of the Park Service to capture and impound dogs
rather than shoot them. On November 2, 1977, the opening day of bear hunting
season and the day on which the events giving rise to the present action
occurred, the Park Service distributed a leaflet on which 36 C.F.R. 2.8(a) and
(d), and the following note were printed:

7
Dogs
observed in the Park, chasing any animals will be caught and impounded.
Capture methods will be by hand or dart injected tranquilizer drugs. All such dog
owners will be cited and subject to fees under Section 5.11.
8

Although field ranger personnel were responsible for printing and distributing
the leaflet, higher officials had approved it.1

B.
9

Ralph W. Staton was among a group of sportsmen bear hunting on private land
bordering the Shenandoah National Park. Two packs of dogs, including three
dogs belonging to Mr. Staton, entered the park and began chasing a small bear.2
Park Ranger Douglas M. Bowen was driving a park vehicle in the area and
heard the chase. When the dogs came into sight, Ranger Bowen tried to divert
them by yelling. When they continued to pursue the bear, he shot and killed the
three dogs belonging to Mr. Staton.3

10

Mr. Staton subsequently brought an action against the United States under the
Federal Tort Claims Act to recover damages for the loss of his three hunting
dogs. He alleged that Ranger Bowen was negligent in shooting the dogs
because they were not in hot pursuit of the bear. He also contended that
shooting the dogs was not a discretionary act because Ranger Bowen had acted
contrary to the Park Service practice of capturing and impounding unleashed
dogs. Mr. Staton relied on the leaflet and the fact that a hunting dog had not
been shot in the park for over twenty years to establish that the Park Service
had a policy against shooting dogs.

11

The district court held that the government was exempt from liability under 28
U.S.C. 2680(a) of the Federal Tort Claims Act because the park ranger had
performed a discretionary act under 36 C.F.R. 2.8(d) and, further, that he had
not acted negligently in shooting the dogs. The decision of the district court was
based on its findings that the dogs were in hot pursuit of a small black bear in
violation of 36 C.F.R. 2.8(d) and that Ranger Bowen had shot the dogs in
good faith only after he had attempted to divert them by yelling. The district
court also found that the leaflet distributed by the Park Service did not alter the
result in the case because Mr. Staton was not aware of the leaflet when his dogs
entered the Park and, therefore, could not show reliance.

II.
12

Section 1346(b) of title 28 of the United States Code authorizes suits against
the United States for property damage caused by the negligent or wrongful acts
of government employees acting within the scope of their employment. Section
2680(a) of the Federal Tort Claims Act, however, expressly exempts the United
States from liability as follows:

13

The provisions of this chapter and section 1346(b) of this title shall not apply
to-

14

(a) Any claim based upon an act or omission of an employee of the

Government, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.

15

28 U.S.C. 2680.

16

The government, therefore, is not liable for the loss of the dogs, and we must
affirm the decision of the district court, if Ranger Bowen either was "exercising
due care in the execution of a statute or regulation," or was "perform(ing) a
discretionary function or duty." See Hatahley v. United States, 351 U.S. 173, 76
S.Ct. 745, 100 L.Ed. 1065 (1956); Bernitsky v. United States, 620 F.2d 948 (3d
Cir.), cert. denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980).

A.
17

In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953),
the leading case regarding the "discretionary function" exception of the Federal
Tort Claims Act, the Court concluded that

18 "discretionary function or duty" that cannot form a basis for suit under the
(T)he
Tort Claims Act includes more than the initiation of programs and activities. It also
includes determinations made by executives or administrators in establishing plans,
specifications or schedules of operations. Where there is room for policy judgment
and decision there is discretion. It necessarily follows that acts of subordinates in
carrying out the operations of government in accordance with official directions
cannot be actionable.
19

Id. at 35-36, 73 S.Ct. at 967-968 (footnotes omitted).

20

Courts have experienced considerable difficulty in applying Dalehite to

determine whether particular actions are within the discretionary function
exception. See Bernitsky v. United States, 620 F.2d 948, 951 (3d Cir.), cert.
denied, 449 U.S. 870, 101 S.Ct. 208, 66 L.Ed.2d 90 (1980); Downs v. United
States, 522 F.2d 990, 996 (6th Cir. 1975); Depass v. United States, 479 F.Supp.
373, 375 (D.Md.1979). In attempting to define and distinguish decisions made
at the "planning level" from those made at the "operational level," see Dalehite,
supra, at 42, 73 S.Ct. at 971, courts have focused upon "the nature and quality"
of the judgment involved. See Downs v. United States, supra, at 997 (citing
Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841,
88 S.Ct. 76, 19 L.Ed.2d 106 (1967)); Griffin v. United States, 500 F.2d 1059,
1064 (3d Cir. 1974). As the court in Downs v. United States recognized,
"Judgment is exercised in almost every human endeavor. It is not the mere
exercise of judgment, however, which immunizes the United States from
liability for the torts of its employees." 522 F.2d at 995. Although it is difficult
to articulate a comprehensive standard for determining whether a particular
judgment falls within the discretionary function exception, the test set forth in
Barton v. United States, 609 F.2d 977 (10th Cir. 1979), provides guidance. In
Barton, the court concluded that

21
Generally
speaking, a duty is discretionary if it involves judgment, planning, or
policy decisions. It is not discretionary if it involves enforcement or administration
of a mandatory duty at the operational level, even if professional expert evaluation is
required. Concisely stated, the rule is that if a government official in performing his
statutory duties must act without reliance upon a fixed or readily ascertainable
standard, the decision he makes is discretionary and within the exception of the Tort
Claims Act.
22

609 F.2d at 979 (citations omitted). Accord, Depass v. United States, 479
F.Supp. 373, 377 (D.Md.1979).

23

The issue before us is whether shooting the dogs pursuant to 36 C.F.R. 2.8(d)
was a discretionary act. Section 2.8(d) provides that "Dogs ... running at large
and observed by an authorized person in the act of killing, injuring or molesting
humans or wildlife may be disposed of in the interest of public safety and
protection of wildlife." (emphasis added). The use of the word "may" in the
regulation suggests that park rangers were intended to have discretion in
applying the regulation. The Park Service, however, routinely has captured and
impounded dogs running loose in the Park. A hunting dog has not been shot in
the Park for over twenty years. The policy against shooting dogs was reflected
in the leaflet distributed by the Park Service wherein it expressly was stated that
"Dogs observed in the Park, chasing any animals will be caught and
impounded."

24

Although field ranger personnel were responsible for printing and distributing
the leaflet, higher officials had indicated that dogs were to be tranquilized or
captured by hand rather than shot. The "discretionary function," which is
exempt from tort liability under 28 U.S.C. 2680(a), was exercised by Ranger
Bowen's superiors when they made a policy decision to capture rather than
shoot dogs. By establishing such a policy, Ranger Bowen's superiors had
interpreted 36 C.F.R. 2.8(d) in such a manner that field ranger personnel no
longer had discretion because "a fixed or readily ascertainable standard" had
been established. See Barton, supra, at 979. We find, therefore, that shooting
dogs did not fall within the discretionary function exception to the Federal Tort
Claims Act.

B.
25

The first clause of 28 U.S.C. 2680 provides that the government is not liable
under the Federal Tort Claims Act for "an act or omission of an employee of
the Government, exercising due care, in the execution of a statute or regulation,
whether or not such statute or regulation is valid ...." It is clear that Ranger

Bowen is a government employee and that he shot the dogs pursuant to a

regulation. The only remaining question is whether he exercised due care in
shooting the dogs. Because we are unable to determine from the record whether
the district court considered the question of due care, we remand for a
determination on this issue.4
III.
26

Although the government is not exempt from liability under the "discretionary
function" clause of 28 U.S.C. 2680(a), it, nonetheless, is exempt from
liability under 2680(a) if Ranger Bowen was "exercising due care, in the
execution of a statute or regulation." Accordingly, we reverse and remand this
case to the district court for a determination on the issue of negligence.

Chief Ranger Larry L. Hakel or Superintendent Robert R. Jacobsen had

indicated to the park rangers that dogs were to be tranquilized or captured by
hand rather than shot

Shortly before hunting season opened, the Park Service issued a media release
informing the public it planned to defend its borders against illegal activity.
Hunters occasionally had been sending their dogs into the park to chase game
out onto private land where the game could be taken legally. That does not
appear to be the case here

Ranger Bowen did not have a tranquilizer gun with him at the time. He shot the
first two dogs with his personal shotgun and the third dog with his service
revolver

We note that in its pleadings the government raised contributory negligence as

an affirmative defense to a finding of negligent conduct by Ranger Bowen.
Because contributory negligence is a bar to recovery for negligence in Virginia,
see, e.g., Flakne v. Chesapeake & Potomac Telephone Company, 199 Va. 31,
34, 97 S.E.2d 650, 652 (1957), and because the United States is liable only to
the extent that a private citizen would be liable under Virginia law, see 28
U.S.C. 1346(b); Downs v. United States, 522 F.2d 990, 999 (6th Cir. 1975),
the district court also should consider the issue of contributory negligence on
remand